Report 28 - Access to Information Review Task Force

THE INFORMATION COMMISSIONER INVESTIGATIVE POWERS AND PROCEDURES

IV - Discussion of the Issues

4. Confidentiality of proceedings

• Why does the statute contain the confidentiality requirements which attach to the investigative power? What do they mean? How much confidentiality is really necessary?

The current provisions under the Statute relating to confidentiality are the following:

(1) Section 35(1) providing that every investigation of a complaint shall be conducted in private;

(2) Section 61 requiring the Information Commissioner and every person acting on his behalf or under his direction, who receives or obtains information relating to any investigation, to satisfy any security requirements including taking oaths, that apply to that information;

(3) Section 62 providing that neither the Commissioner nor any person acting on his behalf or under his direction shall disclose any information that comes to their knowledge in the performance of their duties and functions under the Act (subject to limited disclosure as set out in Section 63);

(4) Section 64 obliging the Commissioner and his staff to take every reasonable precaution to avoid the disclosure of, and not to disclose,

(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under the Act; or

(b) any information as to whether a record exists where the head of the government institution has refused to confirm or deny whether the information exists;

(5) Section 65 which provides that neither the Information Commissioner nor his staff is a competent or compellable witness in respect of any matter coming to their knowledge as a result of performing their duties under the Act, other than in a prosecution for an offence under the Act, a prosecution for perjury in respect of a statement made under the Act or a review before the Court under the Act.

In my view, the confidentiality provisions of the Statute are addressing three different matters:

(1) It is necessary for confidentiality to be maintained during the course of the investigation in order that neither the Commissioner nor his staff reveal the content of the records which the government institution has refused to disclose until such time as a definitive ruling has been made on whether or not the exemption which has been claimed is proper;

(2) During the course of an investigation the Commissioner will often come across or become privy to additional or collateral information, which is not the information in the records which are the subject of the investigation, but which information would itself be exempt if it were to be a subject of a request;

(3) Finally, it is recognized that an Ombudsman functions best in an informal setting where confidentiality can be maintained and in which parties are free to make representations and discuss their positions with the Ombudsman and his staff in a confidential setting.

Indeed, with respect to this last part of the confidentiality requirements currently found in the Statute, the Federal Court of Appeal has ruled in Rubin v. Canada (Privy Council Office) ⁽¹²⁵⁾ that such requirements are an important element of the Commissioner's investigative powers.

In the this case, Mr. Rubin had made a request to the Privy Council Office for certain records related to the remuneration paid to Order in Council Appointees. He was denied that information and made a complaint to the Information Commissioner. During the investigation of that complaint the Privy Council Office made representations to the Information Commissioner. Mr. Rubin subsequently made a second request to the Privy Council Office asking for copies of the submissions which they had made to the Information Commissioner during the course of the earlier investigation. The Privy Council Office refused to provide those submissions on the grounds that they were confidential, relying particularly on the provisions of Section 35(1) and 35(2). During the course of its Reasons for Judgement the federal Court of Appeal had the following to say, quoting from the decision of the Trial Judge,

"A second reason for Section 35 would appear to relate to the role of the Information Commissioner. While he has no power to order disclosure, a credible and effective Commissioner should have significant persuasive power to encourage voluntary resolution of requests for information under government control. In this context, it should be remembered that such information may be either government information, or information of private individuals or others that is under government control.

An important aspect of the development of that credibility and effectiveness is, in my view, the maintenance of strict confidentiality of information that is given to the Commissioner. Indeed, the provisions of the Act that require that the Information Commissioner maintain strict confidentiality on a continuing basis over information given to him, support this conclusion. Parties must have confidence that the Information Commissioner will not divulge the information given to him.

Enhancing the persuasive influence of the Information Commissioner is consistent with the objective that access requests should be resolved quickly and at minimal costs. Of course, in the event a dispute cannot be resolved at the Information Commissioner stage, a complainant can always have recourse to this Court. However, that is his last resort and would not likely be as satisfactory as a resolution at the Information Commissioner stage, because of the additional time and expense involved.

Forced disclosure of representations, it seems to me, may well result in the role of the Information Commissioner becoming more formal and the process thereby becoming less effective. This is not in the interest of the promotion of timely access to information under government control which is the rationale for the Legislation." ⁽¹²⁶⁾

While the Rubin case specifically addresses the representations made to the Commissioner, the comments of the Trial Judge, as adopted by the federal Court of Appeal, also recognize the general importance of allowing an Ombudsman to undertake his or her functions in a confidential process. As the outset of this report I referred to Marshall and Reif and their comments regarding the importance of confidentiality. ⁽¹²⁷⁾

When dealing with the adjudicative model, confidentiality is recognized as necessary for the protection of the records which are the subject matter of the investigation, but confidentiality also has to take into account the rights of the parties to make representations. The British Columbia Commissioner has advised that his practice is to make the representations of the parties, the complainant and the government, available to each other unless there is a good reason not to. Confidentiality in that context is directed toward protecting the information in issue until a determination about whether or not it has been properly exempted has been made.

The ombudsman model may well require slightly different considerations. Obviously there is always the need to protect the information in issue pending a final decision about its release. There is also the recognition that an ombudsman functions best when he or she can operate informally and with the trust and confidence of the parties in a confidential atmosphere.

a) The Obligation of Confidentiality

On the other hand, there have been circumstances in which the obligations of confidentiality would appear to have been taken further than one would reasonably require in order to either protect otherwise exempt information which must necessarily be disclosed to the Commissioner during the course of the investigation or in order to maintain the confidential nature of investigations by the Information Commissioner. For instance, in a case decided by the Federal Court, Trial Division, after the Rubin decision, the Trial Division of the Federal Court agreed with the position of the Information Commissioner that an Access Co-ordinator, who had given evidence during the course of an investigation, which evidence had been transcribed, was not entitled to see or obtain a copy of the transcript of her evidence. ⁽¹²⁸⁾ The individual who had given the evidence felt that the final report reflected unfairly on her and she was trying to challenge the report in the Court. While the Federal Court did not agree that the final report reflected adversely on the individual, it is difficult to see how giving a witness access to a transcript of her own testimony could undermine any of the reasons for maintaining confidentiality during the course of an investigation. And, in fact, it appears that the Commissioner has recognized the difficulties involved in a case where his report might reflect adversely on an individual and has since developed procedures which do allow access to transcripts in some circumstances. This will be discussed more fully below in respect of procedural fairness and the mandate of the Commissioner.

More recently, a decision has been rendered by the Federal Court in proceedings where the actions of the Commissioner are subject to a judicial review. ⁽¹²⁹⁾ The Attorney General is seeking judicial review in connection with the investigation that the Commissioner is conducting as a result of a complaint that the Privy Council Office has wrongfully refused to disclose Prime Ministerial agenda on the basis that they are not under the control of a government institution. One aspect of this review relates to whether the Information Commissioner has the jurisdiction to order that certain questions be answered by witnesses under oath. As provided for in the Federal Court Rules, 1998 Rule 317, the Applicants' counsel asked that copies of the transcripts of the testimony which is in issue to be provided to them and filed with the Court. The Commissioner opposed the request, citing his obligations of confidentiality. The Commissioner's position was that he does not have authority to release information under s. 63 which is not necessary to carry out his investigation. The Trial Division (McKeown, J.) has ruled that the transcripts are to be made available to the Court, on a confidential basis. The Judge found that the statutory provisions mandating confidentiality did not preclude the filing of the transcripts with the court on a confidential basis. The transcripts will also be available for counsel to review and discuss with their clients, but counsel cannot discuss the transcript with the Attorney General of Canada or with any other witness.

These cases illustrate the tension between the recognized importance of having the Commissioner, as an Ombudsman, operate with guarantees of confidentiality and the equally important requirement that the Commissioner and his activities be open to judicial scrutiny. As long as the Commissioner is simply examining records in order to make a recommendation as to whether or not exemptions have been properly applied, the review issue for the courts will also be focused on the information and exemptions. However, once the Commissioner's investigation starts to focus on the conduct of individuals, and this seems to have happened more in recent years, confidentiality provisions may conflict with his obligations to act fairly and proceed in a manner that affords individuals procedural protections and is open to judicial scrutiny. While the Commissioner does not make findings of liability, he may, in these circumstances, make comments about the judgement or conduct of individuals. These comments can become public and can result in significant prejudice to the reputations of those individuals. They can even set in train disciplinary or other proceedings.

The Commissioner has recognized this issue of fairness and disclosure within the confines of an investigation and has developed a procedure for dealing with access to transcripts of evidence and other information which he has collected during the course of an investigation. When he is contemplating that his final report might reflect adversely on an individual, he now provides that individual with a Notice which he has called a "Notice of Possible Adverse Findings". That person and/or his or her counsel are then permitted access to the transcripts and information, but under very strict requirements of confidentiality which prohibit them from discussing with anyone, or revealing to anyone, that information or the content of the transcripts.

But even this procedure appears to have an air of unreality about it. In a recent case, I was counsel for one of several individuals who had received notices of possible adverse finding. After the Commissioner had heard from the parties to whom he had given notices of possible adverse findings, he made an interim report under s. 35 of the Access to Information Act to the government institution seeking its representations on his interim findings. However, he did not provide a copy of the interim report directly to the parties to whom he had given notices of possible adverse findings, on the basis that he felt he had no authorization to do so. The government institution was asked by the Commissioner to comment on the report. The head of the institution was advised by the Commissioner that he could share the report as necessary to make his representations. The head did not do so. The Commissioner maintains that the individuals were not precluded from telling the head what they knew about the matters in the report. However, while this is true, the individuals remained under the strictures of the confidentiality orders and could not reveal to the head of the government institution what they had told the Commissioner or his investigators, or, more importantly, what their views of the matter were after reviewing the transcripts of all of the testimony. The head of the institution was not provided with the transcripts either. He could not, therefore, comment of the evidence on which the Commissioner was relying for his interim findings.

The head of the government institution could not very well comment on the interim report if he could not review it with the individuals who had testified in circumstances in which they could comment on all of the evidence and the interim findings in light of that evidence. Nor could the head comment if he did not have access to the evidence. The individuals who had received notices of possible adverse findings were not aware of whether the report to the head of the institution contained any findings which would reflect negatively on them. This situation provides an example, in my view, of confidentiality taken to an extreme. It is not clear what objective such excessive confidentiality is intended to achieve.

This notification process and the opportunity provided to individuals to respond to such a Notice is discussed more fully below in the context of the Commissioner's role in investigating the conduct of individuals.

However, with respect to the issue of confidentiality it is quite clear that the Information Commissioner has a great deal of latitude with respect to what he can or cannot reveal and the circumstances under which he can reveal it. Generally, it seems that the Commissioner has interpreted his confidentiality obligations broadly and his discretion to disclose narrowly. Section 62, which imposes the primary obligations of confidentiality, is subject to other provisions in the Statute. In particular, Section 63 provides that the Commissioner may disclose information that in his opinion is necessary to:

(i) carry out an investigation under the Act, or

(ii) establish the grounds for findings and recommendations contained in any report under the Act.

While Section 35(1) provides that every investigation by the Commissioner is to be conducted in private, it is the writer's view that this Section is also subject to the discretion in Section 63(1)(a) allowing the Commissioner to disclose information.

This concept of not disclosing information has to be considered in light of Section 64. It specifically addresses the obligation of the Commissioner not to disclose any information which would be exempt if it were the subject of a request under the Act or to disclose information which would reveal whether or not records exist when the head of the government institution has declined to confirm or deny their existence. This, in my view, is the primary purpose of the confidentiality requirement.

It is interesting to note that the Provincial Commissioners and the Ombudsman in Manitoba, who have similar requirements with respect to confidentiality, do not impose confidentiality orders. In British Columbia representations from parties are usually shared except in certain circumstances which are outlined on the Commissioner's web site. The Commissioner has never had an issue with respect to confidentiality and does not issue confidentiality orders. Similarly, in Ontario, it is normal to share representations between parties to the extent possible. The Ontario Commissioner has never had occasion to consider restricting testimony or imposing confidentiality orders. In Manitoba the Ombudsman conducts his inquiries in private and does not share the representations from one party with other parties. The Ombudsman does not believe he has the authority to compel confidentiality and, in fact, has advised the Task Force that he would not want to have that authority. There is only one case that the Ombudsman's office could recall where a witness had been asked not to discuss the information which he gave the Ombudsman with anyone else. This request was made because the Ombudsman's office suspected that there may have been collusion in that particular instance.

Accordingly, coming back to the three elements of the rationale behind the confidentiality requirements imposed on the Commissioner, it is this writer's opinion that the Commissioner has to find a balance between the obligations which are imposed on him by the Statute with respect to confidentiality and the practicalities of the fact that it will be necessary in many cases to reveal at least some information in order to complete the investigation. In particular, the Commissioner has to be cognizant of the rights of individuals, and indeed of government organizations, to present a full response to an investigation and not be hindered in the representations which they are able to make to him. He must also be alive to the rights of requestors who have expressed the view that they should have a greater opportunity to comment on the reasons advanced by government institutions for applying exemptions. A number of the people to whom we spoke felt that proceedings before the Commissioner, particularly when they involved investigation of allegations of impropriety on the part of government institutions or individuals were "too secret" and that the constraints which were placed on them and their counsel were unreasonable and unnecessary. In particular, even Section 64, which deals directly with information which would itself be exempt from disclosure speaks in terms of the Commissioner taking "reasonable precautions".

b) Confidentiality and Counsel

Situations have been reported where departmental officials have been asked, or required by subpoena, to testify, under oath, in the context of a more formalized hearing process. They have been allowed counsel, but not counsel from the Department of Justice or from the employer, unless that counsel was clearly only representing the witness and not the employer as well. Irrespective of the wishes of the witness, the Commissioner's Office will not allow representation by counsel who is deemed by the Commissioner to be representing the government institution involved. When a hearing is held, whether by subpoena or not, both the witness and counsel must sometimes undertake not to discuss any of the evidence – even with other officials in the department. Such restrictions on who can appear as counsel, whether counsel can represent an employee and the employer and to whom witnesses can talk seem excessive – especially if routinely imposed. The Commissioner's officials advised that this approach is taken in order to allow witnesses to testify out of the presence of their supervisors or employers and that many public servants prefer their counsel not to have dual or divided loyalties to both employer and the witness. On the other hand, witnesses who have not been permitted to have counsel which they feel are representing their employer as well, may feel that they are isolated and unable to instruct their counsel as fully as they would like or have their counsel consult with the employer. While there may be the odd case where one or more of these restrictions is justified, surely they are necessary only in the most exceptional case. The witness should always have the right to determine that he or she is content to be represented by counsel who are also representing the employer and, if appropriate, information should be shared with the employer if the witness wished to do so. These restrictions, which are not required by the legislation and which, when routinely applied, evidence a profound mistrust of government institutions and public servants, seem unwarranted.

This approach pre-supposes that access co-ordinators and other public servants will be coerced or intimidated, or that they will collaborate with each other to mislead the Commissioner or, in some other manner, subvert the investigation. The investigation should presuppose that the individual public servants and the government institution will co-operate and that they will make their own choices as to the representation by counsel. While formal investigations with evidence taken under oath are the exception, they do seem to have become more common in the last year or so. Those who have been involved in such a process have found the secrecy to be excessive, the restrictions on counsel to be unreasonable and the whole process quite disconcerting, if not downright threatening.

Since the witnesses in these proceedings are invariably public servants who have access to the records at issue and other records which may be relevant to the investigation and can routinely discuss these records and related information with their colleagues, what is the confidentiality interest being addressed? Government officials are understandably concerned about an investigation which may focus on individual conduct, but, in my experience, that concern at all levels is only exacerbated when the Commissioner and his staff insist on strict confidentiality such as forbidding witnesses from speaking about the evidence they may have given during the course of an investigation.

There has been an exchange of correspondence between the Office of the Information Commissioner and the Department of Justice regarding the role of Department of Justice counsel in the representation of individual public servants. This exchange of correspondence attempted to establish a protocol for determining when it would be appropriate for Department of Justice counsel to undertake the representation of a public servant. A process has been developed, but does not appear to have been widely published, under which public servants can be represented by Crown lawyers and it will be clearly acknowledged that the solicitor/client privilege is as between the lawyer and the individual public servant. Only the public servant can waive the privilege. In that exchange of correspondence, the former Deputy Minister of Justice, George Thomson, seem to have acknowledged that the words "in private" as they appear in Section 35 (1) of the Access to Information Act "… are intended to exclude representatives of a public servant's employer in order to facilitate a candid interview." If Mr. Thomson mean to acknowledge that the legislation requires that such interviews, with or without counsel, have to be conducted in a manner that excludes representatives of a public servant's employer, I must, with respect, disagree with that interpretation. In my view, while the legislation certainly permits the Commissioner to conduct an interview of a public servant in a manner that excludes any representative of the employer, including counsel who may be jointly representing the employer and the public servant, it does not require him to do so.

The protocol does not, however, appear to completely address the issue of confidentiality. To the extent that the individual witness is required to enter into an agreement to maintain confidentiality with respect to his or her testimony before the Information Commissioner, counsel are obliged to give a similar undertaking. There are at least four issues or questions that do not appear to have been resolved by the Office of the Information Commissioner and the Department of Justice:

• Whether or not counsel can be a Crown counsel (Justice counsel or Justice agent) to provide legal assistance to a government employee as a sole client on a solicitor and client basis or whether there is residual professional duty owed by Crown counsel to the Crown;
• Whether counsel to a witness ought to be required to sign an undertaking of confidentiality with respect to the confidential testimony given in his presence by his client;
• Whether a witness who is subject to an order of confidentiality from the Information Commissioner may waive his right to solicitor-client privilege between himself and his counsel in favour of the government;
• Whether absent a conflict of interest, a Crown counsel may provide assistance on a solicitor and client basis to more than one witness in the same investigation and be present during the confidential testimony of each of these witnesses before the Information Commissioner.

The final point may now be resolved by the court. There has been a recent decision from the Federal Court dealing with this issue of representation by counsel of both the individual witness, or witnesses, and, in this case, the Attorney General of Canada. ⁽¹³⁰⁾ This decision also arises out of the series of judicial reviews which is currently before the Federal Court in connection with the issues of access to records by the Commissioner when the government institution takes the position that the records are not under its control. One of the issues involved in this series of cases is the propriety of the confidentiality orders and the undertakings which counsel and the witnesses were required to sign. The issue of representation came up as a preliminary matter. The Court found that the law firm in question, Borden, Ladner, Gervais (BLG) could continue to represent the witnesses as well as the Attorney General of Canada and still comply with the requirements of the confidentiality undertakings which had been signed. In reaching his decision, Judge McKeown had the following to say:

"…The Information Commissioner also submits that it was different as well for the Attorney General to decide to seek consolidation of all the applications. The Information Commissioner submits that he is maintaining the integrity of the process of investigating complaints. However, there is nothing in the record to indicate that Parliament intended to exclude the courts from their usual supervisory powers over federal bodies. The Information Commissioner submits that it is his overarching obligation to protect the private nature of an investigation as his role is not one of disclosing or ordering the disclosure of documents but rather making recommendations to government institutions reporting to Parliament and reporting to the complainants.

...

The Information Commissioner seeks to distinguish the normal rules respecting lawyers restricting the disclosure of knowledge they have to their clients because they are protecting the information for the benefit of a third party. The Information Commissioner submits that the confidential information is protected here in the public interest and by reason of the public statute. I cannot agree. Furthermore, in my view, there is no appearance of impropriety in BLG continuing to act for all parties. There is a genuine concern that by allowing the lawyer for the Attorney General to have information obtained through representation of other clients, the Attorney General may be permitted to benefit by that information.

...

However, in my view, the right to chose one's own counsel is a very important principle in law. It is also a quasi-constitutional principle, just as the Access to Information Act is quasi-constitutional legislation. It is important to note in this case that all of the individual clients, with the exception of the Clerk of the Privy Council, provided written instructions after having been provided with an opportunity to obtain legal advice in which they have instructed that they wish BLG to continue as their lawyers representing all of them and the Attorney General of Canada in these applications for judicial review. The Clerk of the Privy Council was out of the country but confirmed by telephone that he wished BLG to continue to act as his counsel in these proceedings.

...

As the applicants point out, they are seeking to have the Court, and not the Attorney General, look at the information, to decide if the questions go beyond the jurisdiction of the Information Commissioner. The applicant is mixing up the protection of information with the secrecy of the occasion. The information is protected. In my view, there is nothing in the Access to Information Act which makes the Information Commissioner the sole public body in the country which is not subject to the supervision of the courts. Surely, if the Information Commissioner takes the position that a lawyer cannot ask any questions then this is not information protected under the Act. It may be that this is a reasonable position for the Information Commissioner to take but it can only be done if the supervising court has a look at the context of the subject matter."

It is this writer's opinion that the Commissioner and his staff have taken their confidentiality obligations too far and, in some cases, not considered the implications for the investigation of a complaint in a fair and expeditious manner. They do not have a published policy and counsel and witnesses who have been involved in the process report that they feel that the Commissioner's Office appears to be making it up as it goes along.

I would not normally recommend any changes to the current provisions of the Statute. The provisions are essentially the same as those which we have found in the legislation in the various provinces as well as the foreign legislation which we looked at. These provisions are common both to Commissioners who act as Ombudsmen and to Commissioners who act as Adjudicative Officers. These provisions are also common to other federal Statutes. ⁽¹³¹⁾ As pointed out above, a certain level of confidentiality is clearly necessary to protect the information which is the subject of the review and the legislation recognizes that requirement. It gives the Commissioner the discretion to disclose information for the purpose of the investigation. The problem that has been encountered is not a legislative one. The problem arises from the Commissioner's interpretation of his obligations of confidentiality and what appears to be an excessive application of confidentiality beyond that which is required by the legislation or required to fulfil the objectives of the confidentiality provisions of the legislation.

The writer's recommendation is that the Commissioner revisit his position with respect to how he will observe the confidentiality requirements which have been imposed on him, particularly in light of the comments of the Federal Court, and that he take steps to rationalize those requirements with the realities of his investigative function. He should publish his procedures and have rules which will define the respective rights and obligations of parties and witnesses and the steps that the Commissioner will be taking to meet the obligations of confidentiality. The discussions below with respect to the obligations which the Commissioner owes when his investigation touches on the conduct of individuals and the discussion of whether or not the Commissioner should publish guidelines with respect to his investigations are relevant to this discussion as well.

The Statutory provisions are fundamentally sound. More thought and consideration needs to be applied to the way in which those obligations are met and the way in which those obligations are balanced against the Commissioner's obligations to conduct fair and transparent investigations.

If my analysis of the extent of the Commissioner's discretion is wrong, and he does not have the ability to share representations in appropriate circumstances or to refrain from placing restrictions as he does on individuals with respect to information which they may give the Commissioner, I would recommend that the Statute be amended to provide in Section 35(1) that an investigation of a complaint under the Statute "may" be conducted in private rather than "shall" be conducted in private. I note that the Ontario legislation provides in Section 52(3) that the inquiry "may be conducted in private". Similar wording appears in Section 56(2) of the British Columbia legislation. There is, in my view, no necessity for an absolute requirement in respect of how an inquiry or investigation is conducted. The matter should be within the discretion of the Commissioner who can make his determination on a case by case basis as to what confidentiality requirements are needed.

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125. Rubin v. Canada (Privy Council Office) [1994] 2 F.C. 707 (C.A); affirmed [1996] 1 S.C.R. 6; however, in the Commissioner of Official Languages v. Lavigne [2000] F.C.J. No. 1412 (C.A.) the Federal Court has held that comparable provisions applying to the activities of the Official Languages Commissioner cannot be relied on to exempt personal information from disclosure under the Privacy Act. This issue was heard with by the Supreme Court of Canada in January 2002 and a decision is expected later this year.

126. Rubin [1994] ibid, at p.716-717

127. Supra note 14

128. Canada (Attorney General) v. Canada (Information Commissioner), (1996) 119 F.T.R. 77; Canada (Attorney General) v. Canada (Information Commissioner) [1998] 1 F.C. 337; Canada (Attorney General) v. Canada (Information Commissioner), [2000] F.C.J. No.17

129. Hartley, supra note 5

130. Ibid. This particular decision also contains examples of the confidentiality undertakings that a witness and counsel are required to sign.

131. Privacy Act, supra note 20, Section 63; Official Languages Act, R.S.C. 1985, c.31 (4^th Supp.), Section 72; and the Office of the Correctional Investigator under the Corrections and Conditional Release Act, R.S.C. 1992, c.20, as amended, Section 182